Monday, June 19, 2017

STATE OF NEW JERSEY VS. DAMMEN D. MCDUFFIE/
STATE OF NEW JERSEY VS. HAKEEM A. CHANCE
A-1344-14T2/A-3634-14T3(CONSOLIDATED)

We examine defendants' attack on the State's exercised
privilege, refraining from disclosing information regarding
details related to a global positioning system (GPS) tracking

device used to prove their involvement in two burglaries. We
rejected defendants' constitutional attacks and upheld the
privilege granted by N.J.R.E. 516 and N.J.S.A. 2A:84A-28,
defining the guidelines reviewed when weighing disclosure in
light of the asserted privilege. These include: (1) whether
defendant demonstrates a particularized need for disclosure
related to advance a stated defense; (2) whether the opportunity
to cross-examine the officer, asserting non-disclosure based on
privilege, satisfies a defendant's need to challenge the
credibility of the testifying witness; (3) whether law
enforcement provided required corroborating evidence extrinsic
to the GPS, to protect a defendant's rights of confrontation and
fair trial; and (4) whether a defendant has the opportunity to
provide expert testimony to attack the evidence without
disclosure of the requested information.

In this juvenile delinquency prosecution, the Family Part
sua sponte transferred venue to another vicinage without notice
to the juvenile defendant or the State. When the State
objected, the judge held a hearing and stated the transfer was
occasioned by receipt of a confidential report filed by an
judiciary employee pursuant to Judiciary Employee Policy #5-15,
"Reporting Involvement in Litigation," (effective June 1, 2016)
(the Policy). In a subsequently filed brief statement of
reasons, without identifying the employee or his or her
relationship to the litigation, the judge concluded that given
the employee's access to the Family Automated Case Tracking
System (FACTS), location in the courthouse and interaction with
the public, the Policy required the transfer of venue.
The court granted the juvenile's motion for leave to
appeal, which the State supported, and reversed. Our Court
Rules presume venue is laid in the county of the juvenile's
domicile, a presumption further supported by provisions of the
Code of Juvenile Justice. Additionally, the Crime Victim's Bill
of Rights require the court to consider the inconvenience to the
victim occasioned by the transfer of venue.
While the Family Part Presiding Judge may order the
transfer of venue for good cause over the objections of the
juvenile and the State, the court must provide notice of its
intention and an opportunity to object beforehand.
Additionally, the court's power must be exercised in service to
the goals of the Policy, i.e., "to maintain [the Judiciary's]
high degree of integrity and to avoid any actual, potential or
appearance of partiality or conflict of interest in the
adjudication or handling of all cases," and the court must
consider whether a less drastic measure, such as "insulating the
[court employee] from the matter," would accomplish these goals.

The grand jury indicted defendant in a single count charging her
with aggravated assault by throwing a bodily fluid, N.J.S.A.
2C:12-13, which provides,
A person who throws a bodily fluid at a
. . . law enforcement officer while in the
performance of his duties or otherwise
purposely subjects such employee to contact
with a bodily fluid commits an aggravated
assault. If the victim suffers bodily
injury, this shall be a crime of the third
degree. Otherwise, this shall be a crime of
the fourth degree.
The State alleged defendant spat at another inmate, and it
landed on a corrections officer.
Defendant moved to dismiss the indictment, arguing the
prosecutor failed to charge the grand jury regarding the
statute's requisite mental state and failed to present clearly
exculpatory evidence that negated her guilt. State v. Hogan,
144 N.J. 216, 237 (1996). This evidence included statements of
inmates and the disciplinary report of the investigative
corrections officer, which confirmed that defendant intended to
spit at a fellow inmate, not the officer.
The judge denied the motion to dismiss, concluding the evidence
did not meet the standard enunciated in Hogan, but he did not
resolve what mental state was required under the statute or

whether the prosecutor's instructions were appropriate.
Defendant thereafter pled guilty.
The court concluded the State must prove that defendant acted
purposely, and that the doctrine of transferred intent, N.J.S.A.
2C:2-3(d), cannot elevate the act of spitting, even if an
offense under the Criminal Code, into an aggravated assault,
unless the officer was the intended target. See, e.g., State ex
rel S.B., 333 N.J. Super. 236, 244-45 (App. Div. 2000).
Defendant's motion to dismiss should have been granted because
the prosecutor failed to inform the grand jurors of the
requisite culpable mental state.

Wednesday, June 14, 2017

NJ adopted same-elements
test as the sole test for determining what constitutes the “same offense” for
purposes of double jeopardy. More difficult for double
jeopardyState v. Rodney J. Miles (A-72-15) (077035)

Argued January
4, 2017 -- Decided May 16, 2017

Timpone, J.,
writing for a majority of the Court.

In this appeal, the Court clarifies the
methodology to be used in analyzing whether two offenses are the “same offense”
for double jeopardy purposes. Since the 1980s, New Jersey courts have applied
both the same-evidence test and the same-elements test articulated in Blockburger
v. United States, 284 U.S. 299 (1932), in double jeopardy
determinations. A finding that offenses met either test resulted in double
jeopardy protection for the defendant.

A grand jury returned an indictment-charging
defendant with the offenses in the warrant complaint. Defendant then appeared
pro se in municipal court to resolve the disorderly-persons offense. At some
point before that video proceeding, the original municipal charge was amended
to a different disorderly-persons offense—loitering to possess marijuana.
Defendant asked the municipal court judge, “why they got me going to Superior
Court for this, Your Honor?” The judge then responded that defendant was “not
going to Superior Court for this,” but rather for an unrelated child support
issue. Defendant then pled guilty to loitering to possess marijuana.

Thereafter, defendant moved
to dismiss the Superior Court indictment on double-jeopardy grounds, arguing
that prosecution on the possession charges was barred because he had already
pled guilty to an offense that arose from the same conduct. The Superior Court
denied defendant’s motion to dismiss, reasoning that prosecution on the
indicted charges was not barred because it required proof of an additional
element—proximity to a school. Defendant pled guilty to possession of CDS with
intent to distribute within 1000 feet of a school (the school-zone charge), but
preserved his right to appeal the denial of the motion to dismiss.

On appeal, the Appellate
Division remanded for a finding on the circumstances surrounding the amendment
of the disorderly-persons offense. The panel noted that a plea to the original
municipal charge, instead of the amended one, could have led to a different
result after applying the double-jeopardy analysis.

On remand, the Superior
Court found no direct evidence as to the circumstances surrounding the
amendment, and the prosecutor represented that his office was not informed of
defendant’s municipal court proceedings. Despite defendant’s expressed
confusion during the municipal court plea hearing, the Superior Court concluded
that the school-zone prosecution was not precluded by notions of fundamental
fairness.

Defendant appealed again,
arguing that double jeopardy barred prosecution on the school-zone charge. The
Appellate Division agreed, finding that, although the second prosecution was
not barred under the same-elements test, it was barred under the same-evidence
test. 443 N.J. Super. 212, 220, 225-27 (App. Div. 2015).

HELD:
New Jersey now joins the majority of jurisdictions in returning to the Blockburger same-elements
test as the sole test for determining what constitutes the “same offense” for
purposes of double jeopardy. In the interest of justice, the Court applied both
the same-elements test and the now-replaced same-evidence test in this case;
going forward, for offenses committed after the issuance of this opinion, the
same-elements test will serve as the singular framework for determining whether
two charges are the same offense for purposes of double-jeopardy analysis.

1. Here, the municipal
court had jurisdiction to resolve defendant’s disorderly-persons charge
pursuant to N.J.S.A. 2B:12-17, and failure to join does not
automatically bar subsequent prosecution. For judicial efficiency and fairness
to defendants, the Court urges careful coordination between the municipal
courts and county prosecutors.

2. The Court has
consistently interpreted the State Constitution’s double-jeopardy protection as
coextensive with the guarantee of the federal Constitution. A prime concern
when reviewing a double-jeopardy claim is whether the second prosecution is for
the same offense involved in the first.

3. The United States
Supreme Court first announced its test for determining whether a second
prosecution is for the same offense in Blockburger, supra,
284 U.S. at 304: If each statute at issue requires proof of an
element that the other does not, they do not constitute the same offense and a
second prosecution may proceed. This has come to be known as the same-elements
test.

4. The Court read the
language in Illinois v. Vitale, 447 U.S. 410, 421
(1980), as creating an alternative to Blockburger’s same-elements
test—the same-evidence test. The United States Supreme Court reached the same
conclusion in Grady v. Corbin, 495 U.S.508, 510 (1990),
but revised its position in United States v. Dixon, 509 U.S. 688,
704, 708-09 (1993), in which it deemed the same-evidence test unworkable and
reinstated the Blockburger same-elements test as the sole
measure of whether two offenses constitute the same offense.

5. Since Dixon,
the majority of states have similarly ruled that the Blockburger same-elements
test sets forth the proper test for determining whether two charges are the
same offense. Until this case, the Court has not had occasion to reevaluate
double-jeopardy jurisprudence in light of Dixon’s return to the
same-elements test. As a result, appellate panels have split over whether the
same-evidence test still applies in New Jersey.

6. The Court now adopts the
same-elements test as the sole double-jeopardy analysis, thereby realigning New
Jersey law with federal law. The same-elements test is effortlessly applied at
early stages of prosecution; it is capable of producing uniform, predictable
results; and it aids defendants by reducing multiple court appearances. Rule 3:15-1(b)
bars subsequent prosecutions for indictable offenses, and failure by the
prosecution to properly join indictable offenses bars a subsequent prosecution. State
v. Williams, 172 N.J. 361, 368 (2002). The Court
recognizes a narrow circumstance where it is possible that neither the
same-elements test nor the rule in Williams would prevent a
second prosecution; if those unlikely events unfolded, the second prosecution
might well be barred on joinder or fundamental fairness grounds. As a further
safeguard, the Court invites the Supreme Court Committee on Criminal Practice
to review the joinder rule and consider adding non-indictable offenses to it.

7. Because the decision establishes
a new rule of law, the Court applies the new singular same-elements standard
prospectively to offenses committed after the date of this opinion. In fairness
to defendant, the Court conducts double-jeopardy analysis using both the
same-elements test and the now-removed same-evidence test. Application of the Blockburger same-elements
test would lead to the conclusion that loitering to possess marijuana is not
the same offense as possession within a school zone. Each offense contains at
least one element not required to prove the other. Under the same-evidence
test, however, successive prosecution for the school-zone offense is prohibited
because it is based on the same evidence that supported the plea and conviction
on the loitering offense.

8. For offenses committed
after the issuance of this opinion, the same-elements test will serve as the
singular framework for determining whether two charges are the same offense for
double-jeopardy analysis. (p. 23)

The judgment of the
Appellate Division is AFFIRMED. Defendant’s conviction and sentence
on the school-zone offense are vacated.

JUSTICE ALBIN, DISSENTING, expresses
the view that majority’s new rule cannot be squared with the principles of
fairness that previously animated New Jersey’s double-jeopardy jurisprudence.
According to Justice Albin, the majority’s reversion to the same-elements test
will allow the State to pursue repeated prosecutions for the same offense
despite an earlier conviction or acquittal.

Defendant has automatic standing to challenge
the search of a residential apartment State v. Amir Randolph (A-70-15)
(076506)

Argued January 3, 2017 -- Decided May 3, 2017

Albin, J., writing for a unanimous Court.

In this appeal, the Court considers whether a
person charged with a possessory drug offense has automatic standing to
challenge a search or seizure.

Defendant Amir Randolph was charged with various
drug offenses and moved to suppress evidence. Officers testified at the
suppression hearing that, in September 2011, they conducted surveillance of a
three-story apartment building. During the surveillance, Markees King stood in
the second-floor apartment, and later exited the building, where he was
approached by Edward Wright. Wright threw bills on the building’s porch, and
King handed him a white object and retrieved the money. A second individual
came up to King and handed him money and, in return, received a small white
object. Detective Goodman believed that he had observed two drug transactions.
Officers stopped and arrested Wright and, shortly thereafter, King was arrested
as he exited the building.

Sergeant Trowbridge then attempted to enter
building. The tenant of the first-floor apartment opened the door, admitting
Sergeant Trowbridge into the vestibule. Once inside, Sergeant Trowbridge heard
what sounded like someone running from the second floor up to the third floor.
He also found a handgun in the vestibule. Sergeant Trowbridge then proceeded
alone to the second floor. The door to the second-floor apartment, where King
had been sighted, was ajar. From the hallway, Sergeant Trowbridge could see a couch
and debris. He described the apartment as appearing to be vacant or abandoned
and entered to search for “any additional actors there.” As he walked through
the apartment, Sergeant Trowbridge observed several items including a
television, video gaming system, two couches, boots, sneakers, clothes, a
backpack, and a soda bottle, among other things. He also discovered baggies of
marijuana, some currency, a box, a cigarette box, and a letter from an
insurance company addressed to Amir Randolph (defendant) at a different
address. Inside the boxes he found suspected heroin and marijuana. In all, the
police recovered thirty-five baggies of marijuana and forty glassine envelopes
of heroin.

At the suppression hearing, the prosecutor
argued that the warrantless search of the second-floor apartment was valid
based on the exigent-circumstances and protective-sweep exceptions to the
warrant requirement. Instead of addressing that argument, the trial court
upheld the search because defendant did not provide any evidence that he had a
reasonable expectation of privacy in the vacant second-floor apartment or in
the evidence found there.

At trial, the State’s presentation largely
mirrored the testimony at the suppression hearing. Defense counsel requested an
instruction on “mere presence” and “flight.” The trial judge agreed to charge
on flight but explained that a charge on “mere presence” was not necessary. The
jury asked questions, generally concerning the relationship between defendant,
King, and the tenant, and defendant’s location when arrested. The trial judge
simply reminded the jurors to use their “own good common sense, consider the
evidence . . . and give it a reasonable and fair construction in light of your
knowledge of how people behave.” The jury returned guilty verdicts on all
counts.

The Appellate Division reversed, concluding that
the trial court erred in upholding the search based on the flawed finding that
the second-floor apartment was vacant or abandoned. 441 N.J. Super. 533,
552-53 (App. Div. 2015). The panel remanded to determine whether the search was
justified based on the protective-sweep or exigent-circumstances doctrine. The
panel also reversed defendant’s conviction based on the failure to give a “mere
presence” charge. According to the panel, the jury should have been instructed
that, without more, defendant’s “mere presence” at the place where contraband
was seized is insufficient to establish a finding of constructive possession.
Finally, the panel raised concerns about the propriety of the flight charge
without resolving the issue.

HELD:
Defendant had automatic standing to challenge the search of the apartment
because he was charged with possessory drug offenses and because the State
failed to show that the apartment was abandoned or that defendant was a
trespasser. Failing to issue the “mere presence” charge was harmless error.

1. This appeal concerns defendant’s standing to
challenge the search of the apartment. The New Jersey Constitution’s
prohibition against unreasonable searches and seizures affords greater
protection than the federal Constitution. In New Jersey, the State bears the
burden of showing that defendant has no proprietary, possessory, or
participatory interest in either the place searched or the property seized.
Although the Court does not engage in a reasonable expectation of privacy
analysis when a defendant has automatic standing to challenge a search, it does
so in determining whether a defendant has a protectible right of privacy in a
novel class of objects or category of places. Here, the Court is applying
traditional principles of automatic standing to a place that historically has
enjoyed a heightened expectation of privacy—the home. No unique circumstances
call for the Court to engage in an additional reasonable expectation of privacy
analysis as a supplement to its standing rule.

2. The automatic standing rule, however, is
subject to reasonable exceptions, and, in this appeal, the Court recognizes
three exceptions in cases concerning real property: An accused will not have
standing to challenge a search of abandoned property, property on which he was
trespassing, or property from which he was lawfully evicted. The State has the
burden of establishing that one of those exceptions applies to strip a
defendant of automatic standing to challenge a search.

3. In the present case, defendant had automatic
standing to challenge the search of the second-floor apartment because he was
charged with possessory drug offenses, and because the State failed to
establish that Sergeant Trowbridge had an objectively reasonable basis to
believe that the apartment was abandoned or that defendant was a trespasser.
Regardless of the disarray in the apartment and the fact that it was not fully
furnished, there were clear signs that someone occupied it

4. Importantly, at the suppression hearing, the
prosecutor contended that the police conducted a lawful search pursuant to the
exigent-circumstances and protective-sweep exceptions to the warrant
requirement. The trial court never addressed those substantive grounds. The
trial court, moreover, did not apply the well-established principles governing
standing. Rather, the court turned to the reasonable expectation of privacy
test, typically used in federal courts, and concluded—without any evidence—that
the apartment was vacant. The Court, therefore, concludes that the trial court
erred in its analysis and that a new suppression hearing must be conducted.

5. The Court next considers whether the trial
court erred in not instructing the jury on “mere presence” and, if so, whether
the failure to give the charge denied defendant a fair trial. Defendant
requested that the trial court read to the jury the Model Charge that instructs
that a defendant’s “mere presence” at the scene, standing alone, is
insufficient to prove guilt. The court denied that request. The trial court was
clearly mistaken in its belief that the “mere presence” charge is given only in
conspiracy cases. No constraint barred the trial court from giving the “mere
presence” charge, and the better course would have been to give the charge to
disabuse the jury of any possible notion that a conviction could be based
solely on defendant’s presence in the building. However, unlike the appellate
panel, the Court concludes that the failure to give the “mere presence” charge
did not deprive defendant of a fair trial. The charge, as a whole, sufficiently
informed the jury—without using the words “mere presence”—that defendant’s
presence in the building, standing alone, would be insufficient to establish
guilt. The Court, therefore, reverse the judgment of the Appellate Division
granting defendant a new trial.

6. Finally, the Court agrees with the Appellate
Division that, if there is a retrial, the trial court “must carefully consider
whether it is appropriate to charge flight, and, if so, must tailor the charge
to the facts of the case.” 441 N.J. Super. at 563-64. In doing
so, the court must determine whether the probative value of evidence of flight
is “substantially outweighed by the risk of . . . undue prejudice, confusion of
issues, or misleading the jury,” N.J.R.E. 403(a), and whether
a carefully crafted limiting instruction could ameliorate any potential
prejudice.

The judgment of the Appellate Division is AFFIRMED
IN PART and REVERSED IN PART, and the matter is REMANDED to
the trial court for proceedings consistent with this opinion.

In this appeal,
the Court considers a question of first impression: What are a defendant’s
post-indictment reciprocal discovery obligations to the State regarding a
defense witness’s oral statements?

At
a status conference, the State took issue with the witness list defendant
produced because it listed the names of three men but did not provide
identifiers, addresses, or synopses of their anticipated testimony—which the
State alleged was in violation of Rule 3:13-3(b)(2)(C). In
response, defendant agreed to produce identifiers and addresses but argued
against providing synopses. Defendant asserted that the Rule requires
that synopses be produced only if they have already been reduced to writing.
Defense counsel affirmed that no witness statement summaries had been prepared.

The
trial court ordered the defense to produce witness synopses and to create them
if they had not been previously drafted. The court specifically ordered defense
counsel to provide the State with the reason why the witnesses are on the list.
The Appellate Division summarily reversed the trial court’s order, reasoning
that a criminal defendant’s disclosures are carefully limited by the strictures
of Rule 3:13-3(b)(2).

The
trial court granted a motion to stay defendant’s trial pending the Court’s
ruling on the motion. The Court granted the State’s motion for leave to appeal.
226 N.J. 205 (2016).

HELD: A
plain reading of Rule 3:13-3(b)(2)(C) requires production of
witness statements only if those statements have already been reduced to
writing. Nothing in the rules precludes a trial court from ordering a defendant
to designate witnesses as either character or fact witnesses, however. The
Court encourages practitioners to participate in cooperative discovery in order
to ease the burden on all parties involved.

1. Rule 3:13-3(b)(2)(C)
reads, in pertinent part: “A defendant shall provide the State with all relevant
material, including, but not limited to . . . the names, addresses, and
birthdates of those persons known to defendant who may be called as witnesses
at trial and their written statements, if any, including memoranda reporting or
summarizing their oral statements.” This Rule has not seen
much review.

2.
In State v. DiTolvo, 273 N.J. Super. 111 (Law Div.
1994), the State moved to bar a witness’s testimony after the defendant refused
to provide a written summary of the proposed testimony. The court reasoned that
the criminal justice system had a strong interest in “broad and extensive
discovery.” Finding no competing interest in favor of defendant, and failing to
discuss a criminal defendant’s special constitutional status, the court ordered
the defendant to produce a summary of the witness’s proffered testimony or the
court would bar the testimony.

3. State v.
Williams, 80 N.J. 472 (1979), dealt with a collateral
issue: whether summaries already in existence were required to be disclosed if
the defendant had no intention of using them at trial. Because the request
related to inculpatory evidence, the defendant had no duty to produce those
documents. The Court recognized that “[evidential materials obtained in the
exercise of [defense counsel’s] professional responsibility are so interwoven
with the professional judgments relating to a client’s case, strategy and
tactics that they may be said to share the characteristics of an attorney’s
‘work product,’” and that “[blanket discovery of the fruits of this kind of
legal creativity and preparation may impact directly upon the freedom and
initiative which a lawyer must have in order to fully represent his
client.” Id. at 479.

4.
In addition to the confidentiality concerns raised by disclosure of work
product, one of the underlying principles on which our criminal justice system
is based is that a defendant “has a fundamental right to remain
silent.” Williams v. Florida, 399 U.S. 78,
112, 90 S. Ct. 1893, 1912, 26 L. Ed. 2d 446,
483 (1970) (Black, J., concurring in part and dissenting in part). This
defendant agreed to reciprocal discovery, implicating the Rule and
necessitating its review. SeeR. 3:13-3(b)(1).

5. Rule 3:13-3(b)(2)(C)
plainly requires a defendant to produce “the names, addresses, and birthdates
of those persons known to defendant who may be called as witnesses at trial.”
Written statements, however, need only be produced if they exist. This result
is unquestionably mandated by the language “if any,” which modifies “written
statements.” The language following “if any” does not alter that result; it
merely indicates that memoranda either reporting or summarizing a witness’s
oral statements constitute discoverable written statements for purposes of Rule 3:13-3(b)(2)(C).

6.
The trial court’s order was based upon a mistaken understanding of the
applicable law, requiring reversal. However, the Court stops short of finding
that the entire order was an abuse of discretion. Nothing in the court rules
prevents the trial court from obligating defendant to identify a witness as
either a character or fact witness. To the contrary, requiring a defendant to
identify the category of witness not only alleviates some of the State’s
concern regarding the burden of investigating a never-ending list of potential
witnesses, but falls in line with the Court’s policy encouraging cooperation in
the discovery process.

The
judgment of the Appellate Division is AFFIRMED as MODIFIED.
The matter is REMANDED to the trial court for entry of a
discovery order consistent with this opinion.